K (Children), Re [2013] EWCA Civ 1117

Case No B4/2012/1115

Case No B4/2013/0720

Case No B4/2012/1890

[2013] EWCA Civ 1117

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE PRINCIPAL REGISTRY

FAMILY DIVISION

(HIS HONOUR JUDGE BELLAMY)

Venue Royal Courts of Justice

Date Tuesday, 30 July 2013

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE McFARLANE

IN THE MATTER OF K (CHILDREN)

(DAR Transcript of

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Miss Elizabeth Nartey (instructed by Hawkins Solicitors) appeared on behalf of the Applicant father.

The Respondents did not appear and were not represented.

J U D G M E N T

LORD JUSTICE McFARLANE:

Between

Applicant fatherApplicant

[1]This is an application for permission to appeal brought by the father of two children - S, born on [a date in] 2005 and therefore now fast approaching her eighth birthday and another child S, born [a date in] 2006 and therefore now six and a half, and these two children have been the subject of vigorously contested proceedings in the Family Court for a number of years.

[2]The factual history of the matter is striking even for the eyes of one who is familiar with this territory. Initially, Black J, who was the judge dealing with these matters in their early days, was driven to make findings of fact that the mother, or someone on the mother's behalf in her family, had physically assaulted the father by stabbing him, and that on another occasion, a building had been set on fire. The judge made findings to that effect against the mother and in favour of the father, and she made arrangements for the children accordingly because those were, on the scale of things, important findings.

[3]At a subsequent hearing in 2009, Black J was forced to revisit those matters, and in the light of the evidence that was then presented to her, she entirely reversed her findings and found in relation to those two important matters, and together with other serious but less important matters, that the father had deliberately generated evidence before the court including either inflicting or allowing himself to be inflicted with the stab wounds and including causing or arranging for the fire to be caused, and that these were not to be laid at the mother's door.

[4]The judge, Black J, therefore reversed the welfare determinations that she had made, arranged for the children to be resident with the mother and limited the father's contact to once a month supervised.

[5]It was the hope, it would seem, of Black J, that in time the father, who was denying the validity of the findings that she came to make against him, would admit that he had behaved in this harmful way and seek to change his ability to behave like that in the future and reduce the risk thereby, and the judge also hoped that the mother, who had suffered significantly from being on the receiving end of the process I have described, would also be in time more robust and more able to cope with contact taking place, notwithstanding the separation that had occurred between these two parents.

[6]The matter ceased to be under the overview of Black J on her elevation to this court, and although other judges have dealt with the mother, when it was plain that a substantive hearing was to take place, the case was allocated to HHJ Clifford Bellamy, sitting as a judge of the High Court, and he therefore has conducted the case effectively as a part-heard hearing starting as long ago as February 2012. Because of difficulties into which I need not go, the part heard hearing got off to a very slow and stalling start, partly because of the father's inability, choosing the terms as neutrally as I can, to engage in the process in those early hearings, and orders were made by the judge, in particular on 20 April 2012 and again on 4 July 2012, in the father's absence making provision for the future conduct of the case, in particular, at the July hearing, reducing his contact from once every month to four times a year.

[7]The father was unhappy with each of the orders made in April and in July, and issued in respect of each of them a separate notice of appeal.

[8]Each of those two matters came before me for directions, but at each turn the next hearing of the case before Judge Bellamy was very close at hand, and I therefore directed that the determination of the applications for permission to appeal should be adjourned and listed, if the father still wished to do so, after the next substantive hearing. Thus, neither of those two applications has been before a court comprised of a single judge of this court for determination hitherto. At each stage it has been accepted, as I understand it, that the court's approach of letting the substantive case proceed was the right one.

[9]The judge, at the hearing in July 2012, when the father was not present, actually heard key evidence, particularly that of the mother, and delivered himself of an initial judgment in which he summarised the situation as it was then, and the circumstances that led him to consider that it was justified to reduce the contact. At that time the father not only had failed to engage in the court process, but was also reluctant, again to put it in neutral terms, to engage with the expert assessment process that had been set out, namely through the instruction of Dr Drennan, a chartered psychologist currently employed at the Secure and Forensic Services Department at the Sussex NHS Trust.

[10]Matters moved on and in the period between July 2012 and the final hearing that occurred in February of this year, the father did engage with Dr Drennan, did instruct solicitors and counsel to engage with the court process, and did attend before the judge with solicitors and counsel for the final stages of the hearing. At the conclusion of that hearing, in the delivery of an extensive reserved judgment on 22 February 2013, Judge Bellamy reviewed all of the evidence and concluded that it was not in the children's interests for contact to take place more than two times a year, and that each of those two occasions should be supervised and should be for no more than two and a half hours, and it is against that core finding that permission to appeal is now sought.

[11]I am grateful to Miss Nartey, counsel for the father, who has produced a clear set of grounds of appeal and skeleton argument. I am also grateful to her, and indeed to those who attend her, for allowing certain matters to be clarified during the course of the hearing today.

[12]I am going to grant permission to appeal. I do so to a degree with a heavy heart in the sense that this litigation has gone on for long enough and has resulted in the judge delivering a judgment which is in many ways evidence of meticulous judicial care and evaluation, and in granting permission to appeal, I do not express any view at all as to the validity of the grounds of appeal that are widely drawn and widely cast by Miss Nartey. I do not refuse permission to appeal on those grounds and I will say something more about them in short terms at the end of this short judgment. But the factor in the case that has driven me to grant permission to appeal is that which is encapsulated at paragraph 3.3 of the Skeleton Argument.

[13]I can summarise the matter in this way: the father by the time the case came on for hearing before Judge Bellamy was accepting of almost all of the adverse findings made against him by Black J, save for the two most significant ones, the stabbing and the fire to which I have already made reference. The judge describes in his judgment at paragraph 5 the set up for the hearing in these terms:

"Two key issues for determination at this welfare hearing are the extent to which, if at all, the father now accepts the findings of abuse previously made by Black J (as she then was) in her judgments delivered on 21st September 2007 and 3rd July 2008 and the extent to which he is motivated to change. These two issues are inter-linked."

[14]The judge was explicit that was the agenda for the hearing as he saw it and he was obviously looking with a keen eye to see whether the father now accepted all of the findings of Black J including the two most serious. That agenda for the hearing was also the central theme of the judgment. For example, it is also a matter to which Dr Drennan in his report turned considerable attention and in turn the judge in summarising Dr Drennan's report also gave prominence to that aspect of the case.

[15]Moving further along the line, as a result of his assessment, which was that the father was, to use my word, only paying lip service to the fact that Black J had made these important findings and was not internally accepting them as true himself, that state of affairs led to Dr Drennan assessing the risk of harm to the children (as set out in paragraph 32 of the judgment) to identify that the risk of the father abducting these children was "high", and the risk of the father abusing the mother again as being on a scale of 0 to 10, with 10 being the most serious, "9 out of 10". The judge found Mr Drennan to be (paragraph 73) "a very impressive witness", and effectively accepted the risk valuation that the expert presented. That high level of risk was clarified for Judge Bellamy in a way that had not been clarified before the earlier court, presided over by Black J, on the basis that there was no indication of substantial change in the father's position. HHJ Bellamy also found that the mother remained highly vulnerable to the stress generated by contact, and by exposure to the father in proceedings and elsewhere, and remained highly fearful of him. The judge therefore found that the level of contact, even at once a month, was not sustainable in this, again to use my word, chronic situation, and a reduction in contact was justified.

[16]It is plain on that analysis of the judge's judgment that much was put upon the father's inability to say in terms to Dr Drennan and to the judge that he accepted that he did generate the stabbing incident and was responsible, directly or indirectly, for the arson. Ms Nartey, at paragraph 3(iii) of the grounds, says the judge erred in law in interpreting the father's evidence in that way. She submits that the judge gave no warning to the father against self-incrimination and failed to weigh up the father's answers with eyes open to the fact that if the father was being cagey, which he undoubtedly was, that this was on legal advice as to the need to avoid incriminating himself.

[17]Initially on reading the papers I did not think there was anything in that ground, partly because, on my reading of the law, the reference to the Civil Evidence Act 1968, section 14 in Ms Nartey's document is, with respect to her, erroneous. The position in family proceedings is governed by the Children Act 1989, section 98, which removes the privilege against self-incrimination from a witness and effectively requires them to answer any question that is put to them, but limits the use to which that material can subsequently be put in terms of criminal prosecution. But on looking at the matter in more detail and in particular now seeing the witness statement, being the ninth witness statement of the father which has been provided to me during the hearing, I can see that there is more in this point. At paragraph 57 onwards of the statement, the father says in terms:

"I am advised that there are provisions in law to give an individual the right to not self-incriminate. I am afraid that in this respect I am going to have to seek to rely on my right not to incriminate myself in relation to the issues of the stabbing and the fire. I am in these two issues unable to comment. All I can say is to the extent that these two issues and my attitude to them have caused distress, I am truly sorry ..."

[18]I have now been taken to the transcript of the hearing where the father gives evidence, and in particular at page TB 92 of the transcript bundle. Judge Bellamy seems to take over the questioning of the father and from that page and on the next two or three pages, despite the firm questioning by the judge, the father sticks to what he said in his statement and he makes express reference to the inability, as he sees it, for him to comment further because of the risk of incrimination. That is where the matter is left, and the self-incrimination point, Miss Nartey quite candidly says, was not raised by her in closing submissions, and does not see itself being referred to expressly in the judge's judgment.

[19]What had happened before Black J, I am told, is that a warning in what might be said to be the usual terms had been given. That warning would have encapsulated reference to section 98 of the Children Act and the need to answer questions, but also warned the individual that the answers given might in due course be disclosed to the police or the prosecuting authorities in order to shape their investigation of any potential criminal charges.

[20]That warning was not given on this occasion and the father simply, and it is now plain from the way the statement was drafted, on legal advice, did not give the answers that the judge was obviously hoping for him to give, and this, as I have described, may have entirely coloured the approach to the father's evidence of Dr Drennan and the judge.

[21]I considered it appropriate to ask Miss Nartey during the course of submissions to take instructions on whether, if self-incrimination had not been a factor in the case, the father would have given clearer answers to the judge as to his involvement with one or other or both of these two key incidents, and the answer came back directly on instructions from the father, “yes”, he would. Plainly if he was going to deny matters, then legally and evidentially the matter would be much more straightforward, but he does not take that course. It is a more sophisticated matter.

[22]I am therefore concerned, without coming to any concluded view about it, that this very important aspect of the case may have proceeded either on the basis of erroneous advice being given to the father or on the basis that the judge should have grasped this issue and dealt with it openly, with the father before he gave his evidence, or that the judge failed to understand just how the father was to approach this evidence and the importance the father gave to his understanding of the legal position. It may be that none of those matters are in play, all of them are, or a combination of those and maybe some other features are relevant. But given the importance of this part of the case, I consider that I have got no alternative but to grant permission to appeal so that this can be looked at by the full court and with the benefit of representation from the other parties.

[23]I indicated that I would say something about the other grounds of appeal that are raised. I consider that the father is entitled, given that there is to be an appeal, to make the points through Miss Nartey or otherwise that he seeks to make. It will help those who hear this case to understand that notwithstanding the detail of the points that are made, the essential thrust of Miss Nartey's submission is attractively short and firmly put. Her case is that, if the level of contact chosen by Black J was the right level of contact to meet the welfare needs of these two children, even if there has been no change from that time in the father's position (and she would say there has been a lot of change) and even if there has not been change on the two key findings, then there is no justification in changing the contact. “No change in circumstances, no change in contact”, to put it in pithy terms, would be the core of her submission. She says that whatever the circumstances, to reduce even from the relatively modest level of once every month to two times a year was not justified in this case and it seems to me that, put that way, if there is to be an appeal on the self-incrimination point the father should be entitled to allow the full court to consider that.

[24]So I have taken more time than I would normally do in spelling out why I have given permission to appeal in this judgment, but for the reasons I have given I do indeed do that.

Order

Application granted